Victoria's anti-corruption commission IBAC will still be a toothless tiger

Stephen Charles

When the Victorian Parliament starts its 2016 sittings, one of the first pieces of legislation to be considered will be the bill to amend the IBAC Act. It is intended to provide Victorians with a stronger system of government integrity and accountability - to enable IBAC to discover, expose and root out corruption, and deter it, more effectively. The bill, when enacted, will broaden the definition of "corrupt conduct" by the inclusion of "misconduct in public office", as an essential step forward, although the definition of "corrupt conduct" will still be too narrow.

It will reduce the threshold at which IBAC is able to conduct a full investigation. It will no longer be limited to investigating "serious" corrupt conduct and it will also be authorised while making preliminary inquiries to require the principal officer of a public body to provide any relevant information to IBAC and to require any person to produce documents or other things to IBAC. IBAC will be given power to delegate certain functions, and there are other useful provisions in the amending legislation. Once the bill is enacted, the Andrews Government will have met the letter of its pre-election commitments, and the bill will be a good start in providing Victoria with a more effective IBAC.

There is ample evidence of the presence of corruption in Victoria and Australia. Illustration: Rocco Fazzari

But it is only a good start. By contrast, NSW's ICAC has powers of investigation which are almost unlimited, and it is entitled to investigate virtually any allegationupon suspicion of corruption, using its full powers. This makes it very difficult for any investigated party to obstruct or delay an investigation by launching proceedings for a court injunction.

There is now abundant evidence of the presence of corruption in Victoria and Australia. The recent investigation of the Transport Department by IBAC showed that large contracts had been, and were being, improperly awarded by departmental officers to companies they had set up. In the IBAC's investigation of the Education Department, it was discovered that millions of dollars from the State school system's budget were being siphoned off to "banker schools", and then used as a "slush fund". But there would have been nothing obviously wrong or suspicious in the awarding of transport contracts to companies, or in transferring large amounts of money to individual schools. In either case, unlike ICAC's investigations in relation to the awarding of mining contracts in the Bylong Valley in NSW, it is a reasonable inference that IBAC was alerted at the outset by a well-informed tip-off from some disaffected person, without which no investigation could or would have occurred.

Without the powers of NSW's ICAC, Victoria's IBAC will be a mere kitten, with no effective claws.

Even after the bill is enacted, Victoria's IBAC will be in a much weaker position than NSW's ICAC. IBAC was always entitled to conduct preliminary inquiries, but it will still not be entitled to move to a full inquiry, using its full powers, until a threshold is passed, being the point at which IBAC suspects on reasonable grounds that the conduct in question "constitutes corrupt conduct". IBAC must therefore know enough to enable it to identify the facts which could reasonably constitute one of the offences which amount to corrupt conduct. Even though under the Bill it will no longer be necessary for IBAC to establish the required state of mind for the offence, IBAC must still be able then to articulate the other facts necessary to establish a relevant offence.

The consequence is that the amending bill sets up a new threshold, the point at which IBAC may proceed from a preliminary to a full investigation. In the preliminary phase, IBAC will have difficulty framing a request for information to a departmental head, or identifying documents to seek from individuals. As soon as a suspect becomes aware of a preliminary inquiry or an investigation, the suspect may seek a court order to stop IBAC's inquiries, and IBAC will then be forced to place before the court – and the suspect – all of the information it has obtained and its grounds for seeking to investigate. And the suspect will achieve delay, precise knowledge of what IBAC is doing, and the opportunity to hide or destroy evidence.

The real question for Parliament now to consider is whether IBAC should be left in a condition still much weaker than NSW's ICAC. Without well-informed tip-offs, it will be much more difficult for IBAC to investigate behaviour that is suspicious. The next question is how many other areas of corrupt behaviour exist in this state and will continue to fester unless IBAC is given full powers and discretion to investigate, without the present or proposed threshold, to enable it to perform its duty to expose and eradicate corruption effectively.

Adequate safeguards for the community are already in place in the IBAC Act with the existence of the IBAC Inspectorate, and the Committee of Parliament, both of which examine and supervise IBAC's conduct. The Government and Parliament should give IBAC and its commissioner the same powers and discretions enacted by the NSW Parliament for ICAC, and enable IBAC to carry out its investigations with full powers from the outset.